- 45 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

132 Ventures, LLC, a Nebraska limited liability 

company, appellee and cross-appellant, v. Active Spine 

Physical Therapy, LLC, a Nebraska limited liability 

company, et al., appellants and cross-appellees.

___ N.W.2d ___

Filed December 16, 2022. No. S-22-047.

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial 

court’s factual findings have the effect of a jury verdict and will not be 

set aside on appeal unless clearly wrong.

2. Statutes: Appeal and Error. Statutory interpretation presents a question 

of law which an appellate court resolves independently of the lower court.

3. Constitutional Law: Appeal and Error. The review of constitutional 

standards is a question of law and is reviewed independently of the trial 

court’s determination.

4. Jury Trials: Waiver. A party must be entitled to a jury trial before the 

party can validly waive that right.

5. Forcible Entry and Detainer: Property: Words and Phrases. The 

forcible entry and detainer proceeding is a special statutory proceeding 

designed to provide a speedy and summary method by which the owner 

of real estate might regain possession of it from one who had unlawfully and forcibly entered into and detained possession thereof, or one 

who, having lawfully entered, then unlawfully and forcibly detained 

possession.

6. Forcible Entry and Detainer: Legislature. Because of its summary 

nature, the Legislature has narrowed the issues that can be tried in a 

forcible entry and detainer action to the right of possession and statutorily designated incidents thereto.

7. Forcible Entry and Detainer: Title. A forcible entry and detainer 

action does not try the question of title, but only the immediate right 

of possession.

8. Constitutional Law: Jury Trials. Nebraska’s Constitution preserves the 

right to a jury trial as it existed at common law.

9. Forcible Entry and Detainer: Damages. Neb. Rev. Stat. § 25‐21,223 

(Reissue 2016), a provision of Nebraska’s forcible entry and detainer 

statutes, contemplates bifurcated proceedings wherever damages are 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/23/2022 01:04 AM CST
- 46 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

warranted, distinguishing between the “trial of the action for possession” 

and “other causes of action.”

10. Statutes: Legislature: Intent. In construing a statute, the legislative 

intention is to be determined from a general consideration of the whole 

act with reference to the subject matter to which it applies and the 

particular topic under which the language in question is found, and the 

intent as deduced from the whole will prevail over that of a particular 

part considered separately.

11. Jury Trials: Equity. At common law, legal claims were tried by a jury 

and equitable claims were tried by a court.

12. Claims: Jury Trials: Equity. In Nebraska, it is well established that 

litigants are typically entitled to a jury trial on legal claims, but not 

equitable claims.

13. Actions: Pleadings: Equity. The essential character of a cause of 

action and the remedy or relief it seeks as shown by the allegations of 

the petition determine whether a particular action is one at law to be 

tried to a jury or in equity to be tried to a court.

14. Actions: Breach of Contract: Damages. A suit for damages arising 

from breach of a contract presents an action at law.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed in part, and in part reversed and 

remanded for a new trial.

Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross, 

Welch, Marks & Clare, P.C., L.L.O., for appellants.

Rubina S. Khaleel and Ashley Fischer-Foxall, of Hennessy & 

Roach, P.C., and Aimee Cizek, of McGill, Gotsdiner, Workman 

& Lepp, P.C., L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Post, District Judge.

Funke, J.

INTRODUCTION

This appeal arises from a dispute concerning the possession and use of a commercial property in Omaha, Nebraska. A 

complaint was filed by 132 Ventures, LLC, managed by Dale 

Scott, against Active Spine Physical Therapy, LLC (Active 

Spine), Sara Muchowicz, and Nicholas Muchowicz for (1) 

forcible entry and detainer, (2) breach of contract, (3) breach of 

guaranty, and (4) unjust enrichment. The district court granted 
- 47 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

relief on 132 Ventures’ forcible entry and detainer cause of 

action, ordering restitution of the premises. The district court 

proceeded to hear the remaining causes of action at a bench 

trial and subsequently awarded damages to 132 Ventures in the 

amount of $158,368.73 under the parties’ amended lease agreement. Active Spine and the Muchowiczes appeal, assigning 

error to the district court’s denial of their request for a jury trial 

and its calculation of damages, and 132 Ventures cross‐appeals, 

assigning multiple errors related to the district court’s calculation of damages.

BACKGROUND

Active Spine is a physical therapy business owned by the 

Muchowiczes. In 2017, with the assistance of Scott, a real 

estate broker, the Muchowiczes began looking for a new building to purchase for Active Spine. The Muchowiczes decided 

to purchase a commercial property in Omaha. Before buying 

the property, the Muchowiczes formed DEMU Properties, LLC 

(DEMU), to hold title to it. Scott became a member of DEMU 

along with the Muchowiczes. DEMU then purchased the property, with its members intending to execute a lease with Active 

Spine for a portion of the property.

On December 29, 2017, Scott on behalf of DEMU and 

Nicholas on behalf of Active Spine executed a written lease 

agreement (December 29 lease) for the purchased property. 

The December 29 lease provided that Active Spine would 

occupy 9,544 rentable square feet of the property at a base 

rent of $12.50 per rentable square foot for the first year of the 

lease. Additionally, the lease provided that the base rent would 

increase to $13 per rentable square foot for the second lease 

year. The term of the lease was 20 years, with an option to 

renew for two additional 5‐year periods. As part of the lease 

agreement, Nicholas and Sara executed a “Personal Guarantee” 

unconditionally guaranteeing payment of all rent and other 

charges due under the lease. On February 20, 2020, Nicholas, 

as DEMU’s manager, purportedly executed an amendment 
- 48 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

of the December 29 lease (amended lease) on behalf of both 

DEMU and Active Spine. The amended lease differs from the 

December 29 lease in multiple respects, but not in its calculation of monthly rent payments.

In June 2020, the property was purchased by 132 Ventures 

at a foreclosure sale. A third‐party management company for 

132 Ventures began invoicing Active Spine for rent. Active 

Spine did not pay rent to 132 Ventures in June or July, resulting in 132 Ventures serving Active Spine with a “Three‐Day 

Notice to Quit” pursuant to Neb. Rev. Stat. § 25‐21,221 

(Reissue 2016). On July 23, 132 Ventures filed its complaint 

against Active Spine and the Muchowiczes. On its cause of 

action for forcible entry and detainer, 132 Ventures sought 

immediate possession of the property pending proceedings on 

its other causes of action. Active Spine filed a counterclaim 

and third‐party complaint against 132 Ventures and Scott, 

alleging fraud, promissory estoppel, and intentional interference with a business expectation against both parties.

In August 2020, the matter came on for hearing on 132 

Ventures’ cause of action for forcible entry and detainer. 

Although evidence was heard, the district court made no 

ruling on the issue of possession. Instead, the court consolidated the case with another related matter and reassigned 

the case to another judge. Active Spine subsequently moved 

for a temporary injunction to prevent eviction. In October, a 

separate hearing was held on the forcible entry and detainer 

action, as well as the motion for a temporary injunction. On 

January 4, 2021, the district court ordered restitution of the 

property to 132 Ventures, explaining that “[t]he evidence 

is clear that Defendants have paid no rent to Plaintiff” and 

that Active Spine had failed to demonstrate entitlement to 

equitable relief. Active Spine was ordered removed from 

the premises.

Following the district court’s restitution order, 132 Ventures 

sought damages on its causes of action for breach of contract, 

breach of guaranty, and unjust enrichment. On July 20, 2021, 
- 49 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

the district court set the matter for a bench trial in November. 

The order setting the bench trial stated that “upon agreement 

of the parties . . . the case should be tried to the Court without 

a jury.”

On August 10, 2021, Active Spine moved to reset the trial 

and requested a jury trial. The Muchowiczes also objected to 

trial without a jury. Thereafter, 132 Ventures filed a motion 

resisting the request to set the matter for a jury trial, and in 

its motion, 132 Ventures indicated that all parties were present 

at the hearing in which the matter was set for a bench trial. 

Although Active Spine and the Muchowiczes do not contest 

they were present at a hearing to set the matter for trial, both 

parties suggest that the hearing was not on the record. Further, 

the appellate record merely indicates that a hearing to set a 

trial was to be held on July 20, but there is no record from 

that hearing.

On October 20, 2021, the district court overruled the objections to a bench trial, explaining:

On July 20, 2021, the Court set this matter for a 2 and 1

⁄2 day bench trial for November 8 to 10, 2021. No party 

objected to the Court setting the matter for a bench trial. 

In fact, the Court order . . . stated that “upon agreement 

of the parties . . . the case should be tried to the Court 

without a jury.”

Active Spine subsequently dismissed its counterclaim and 

third‐party complaint. The district court proceeded to trial 

as scheduled. At trial, Active Spine and the Muchowiczes 

cross‐examined 132 Ventures’ witnesses, but opted not to present their own case in chief or move for a directed verdict, 

instead continuing their objection to the trial going forward 

without a jury.

The evidence offered at trial focused on the issue of damages. According to 132 Ventures, the December 29 lease was 

the relevant lease and the amended lease executed by Nicholas 

was void. To support its contention, 132 Ventures argued 

that because DEMU’s operating agreement provides that “the 
- 50 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

affirmative vote of all Members shall be necessary to effect 

. . . [a]ny contracts between the Company and any entity or 

individual affiliated with the Manager,” it would be improper 

to consider the amended lease executed by Nicholas when 

calculating damages. Active Spine and the Muchowiczes contended that the amended lease was the relevant agreement to be 

considered. The district court agreed with Active Spine and the 

Muchowiczes and concluded that because 132 Ventures was 

not a party to the amended lease, it could not assert that the 

lease was void. The court then proceeded to award damages to 

132 Ventures based upon the amended lease. This appeal followed. Before the Court of Appeals addressed the appeal, we 

moved the matter to our docket. 1

ASSIGNMENTS OF ERROR

Active Spine and the Muchowiczes assign that the district 

court erred in denying their request for a jury trial and in its 

calculation of damages. On cross‐appeal, 132 Ventures assigns 

that the district court erred when it determined the amended 

lease applied for the purpose of calculating damages and in its 

calculation of damages.

STANDARD OF REVIEW

[1‐3] In a bench trial of a law action, a trial court’s factual 

findings have the effect of a jury verdict and will not be set 

aside on appeal unless clearly wrong. 2 By contrast, statutory 

interpretation presents a question of law which an appellate 

court reviews independently of the lower court. 3 Similarly, the 

review of constitutional standards is a question of law and is 

reviewed independently of the trial court’s determination. 4

1 See Neb. Rev. Stat. § 24‐1106(3) (Cum. Supp. 2020).

2 McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 

251 (2021).

3 Williams v. Williams, 311 Neb. 772, 975 N.W.2d 523 (2022).

4 Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).
- 51 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

ANALYSIS

Active Spine and the Muchowiczes argue on appeal that 

they were entitled to a jury trial on 132 Ventures’ breach of 

contract, breach of guaranty, and unjust enrichment causes 

of action following the resolution of the forcible entry and 

detainer cause of action. Further, they argue that they never 

waived their right to a jury trial and, in fact, objected at all 

relevant points to trial occurring without a jury. In countering, 

132 Ventures argues that Active Spine and the Muchowiczes 

were not entitled to a jury trial or, in the alternative, that they 

waived that right.

[4] A party must be entitled to a jury trial before the party 

can validly waive that right. 5 Accordingly, we must determine as a preliminary matter whether Active Spine and the 

Muchowiczes were entitled to a jury trial on the causes of 

action joined with the action for forcible entry and detainer.

Right to Civil Jury Trial

[5‐7] The forcible entry and detainer proceeding is a special 

statutory proceeding designed to provide a speedy and summary method by which the owner of real estate might regain 

possession of it from one who had unlawfully and forcibly 

entered into and detained possession thereof, or one who, having lawfully entered, then unlawfully and forcibly detained 

possession. 6 Because of its summary nature, the Legislature 

has narrowed the issues that can be tried in a forcible entry 

and detainer action to the right of possession and statutorily 

designated incidents thereto. 7 In particular, Neb. Rev. Stat. 

§ 25‐21,219 (Reissue 2016) provides that in addition to determining the parties’ rights to immediate possession, in forcible 

entry and detainer actions:

5 Id.

6 Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003).

7 Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774 

(2014).
- 52 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

The court or the jury, as the situation warrants, shall 

inquire into the matters between the two litigants such as 

the amount of rent owing the plaintiff and the amount of 

damage caused by the defendant to the premises while 

they were occupied by him or her and render a judgment 

or verdict accordingly.

A forcible entry and detainer action does not try the question 

of title, but only the immediate right of possession. 8

Citing State v. Moores,

 9 132 Ventures emphasizes that, 

at common law, there was generally no right to a jury 

trial in statutorily created summary proceedings. It is true 

that forcible entry and detainer actions are creatures of 

the Legislature. 10 Historically, only county courts, municipal courts, and justices of the peace had original jurisdiction over forcible entry and detainer actions. 11 In 1984, 

the Legislature extended original jurisdiction over forcible 

entry and detainer actions to district courts, but the scope 

of the actions remained limited. 12 We have previously held 

that when a district court hears a forcible entry and detainer 

action, it sits as a special statutory tribunal to summarily 

decide the issues authorized by the statute, and not as a court 

of general jurisdiction with the power to hear and determine 

other issues. 13 Forcible entry and detainer actions involve 

accelerated trial procedures; trial of the action for 

possession is to be held no more than 14 days after the date of 

8 Id.

9 State v. Moores, 56 Neb. 1, 9, 76 N.W. 530, 532 (1898) (“[s]o far as we 

can now trace the right of trial by jury, at common law, it did not extend 

to equitable actions, admiralty, or summary proceedings . . . .”), dismissed 

on rehearing 58 Neb. 285, 78 N.W. 529 (1899).

10 See Cummins Mgmt., supra note 6.

11 Id.

12 See id.

13 Id.
- 53 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

issuance of the summons, and, generally, no continuance shall 

be granted in excess of 7 days. 14

Although it may appear at odds with the procedure’s expeditious design, Nebraska’s forcible entry and detainer statutes 

specifically authorize a trial by jury if either party demands 

one. 15 Here, however, the parties agree that Active Spine and 

the Muchowiczes did not demand a jury trial prior to adjudication of the first cause of action, namely 132 Ventures’ 

cause of action against Active Spine for forcible entry and 

detainer. Instead, Active Spine and the Muchowiczes objected 

to the subsequent, separate bench trial on damages (i.e., 132 

Ventures’ causes of action for breach of contract, breach of 

guaranty, and unjust enrichment).

[8] We have previously held that Nebraska’s Constitution 

preserves the right to a jury trial as it existed at common law. 16

Article I, § 6, of the Nebraska Constitution provides:

The right of trial by jury shall remain inviolate, but the 

Legislature may authorize trial by a jury of a less number 

than twelve in courts inferior to the District Court, and 

may by general law authorize a verdict in civil cases in 

any court by not less than five‐sixths of the jury.

The argument of 132 Ventures is that the language of Neb. 

Rev. Stat. § 25‐21,226 (Reissue 2016) mandates a bench trial 

for an entire forcible entry and detainer case if the parties 

wait to object until after the proceedings on the immediate 

right to possession have already occurred. Section 25‐21,226 

provides in full:

14 See Neb. Rev. Stat. §§ 25‐21,223 and 25‐21,225 (Reissue 2016).

15 See Neb. Rev. Stat. § 25‐21,227 (Reissue 2016). Cf., Christiansen v. 

Moore, 184 Neb. 818, 172 N.W.2d 620 (1969) (discussing right to trial 

by jury in garnishment); Central Market v. King, 132 Neb. 380, 272 N.W. 

244 (1937) (law of garnishment is purely statutory); Clark v. Foxworthy, 

14 Neb. 241, 15 N.W. 342 (1883) (discussing right to trial by jury in 

garnishment).

16 See Schmid, supra note 4.
- 54 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

If the suit is not continued or the place of trial 

changed, or if neither party demands a jury, the court 

shall try the cause. If, after hearing the evidence, the 

court shall conclude that the complaint is not true, the 

court shall enter judgment against the plaintiff for costs. 

If the court shall find that the complaint is true, judgment 

shall be entered against the defendant and in favor of the 

plaintiff for restitution of the premises and costs of suit. 

If the court shall find that the complaint is true in part, 

judgment shall be entered for the restitution of such part 

only, and the costs shall be taxed as the court shall deem 

just and equitable.

According to 132 Ventures, “The plain language of 

[§ 25‐21,226] is clear: unless the case is continued, the location of the trial is changed, or if one of the parties demands a 

jury trial, a forcible entry and detainer case must be tried to 

the bench.” 17

[9] Active Spine and the Muchowiczes argue, in turn, 

that 132 Ventures’ position “completely ignores Nebraska’s 

statutory scheme as it applies to forcible entry and detainer 

actions.” 18 Active Spine and the Muchowiczes emphasize 

that § 25‐21,223, another provision of Nebraska’s forcible 

entry and detainer statutes, contemplates bifurcated proceedings wherever damages are warranted, distinguishing between 

the “trial of the action for possession” and “other causes of 

action.”

[10] We have previously said, in construing a statute, that 

the legislative intention is to be determined from a general 

consideration of the whole act with reference to the subject 

matter to which it applies and the particular topic under which 

the language in question is found, and the intent as deduced 

from the whole will prevail over that of a particular part 

17 Brief for appellee at 9.

18 Reply brief for appellant at 6.
- 55 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

considered separately. 19 Nebraska’s forcible entry and detainer 

statutes are decidedly intended to avoid much of the expense 

and delay incident to the more cumbersome action of ejectment formerly employed at common law. 20 Thus, the intent 

of § 25‐21,223, as deduced from the whole, is to facilitate a 

speedy determination of the immediate right to possession by 

allowing for bifurcated proceedings that prioritize the cause of 

action for forcible entry and detainer.

Accordingly, we conclude that § 25‐21,226 discusses what 

§ 25‐21,223 refers to as the “trial of the action for possession” 

(i.e., a cause of action for forcible entry and detainer). Unlike 

§ 25‐21,223, § 25‐21,226 concerns itself only with the remedy 

of restitution. Section 25‐21,226 does not inhibit any right 

to trial by jury that would otherwise arise incident to what 

§ 25‐21,223 refers to as “other causes of action” and what here 

manifested as a subsequent, separate trial regarding damages 

owed under contract. Nor did § 25‐21,226 operate here to create an implicit waiver of Active Spine’s and the Muchowiczes’ 

right to a jury trial on damages.

Active Spine and the Muchowiczes maintain that they were 

entitled to a jury trial on damages because 132 Ventures’ complaint against them was predominantly focused on contractual 

remedies. They argue that 132 Ventures’ unjust enrichment 

claim was the only cause of action out of four that did not 

depend on a contractual right and emphasize that the only 

cause of action brought against the Muchowiczes individually 

was for breach of guaranty. Ultimately, Active Spine and the 

Muchowiczes argue that we cannot read into the forcible entry 

and detainer statutes that parties waive their right to a jury 

trial on other causes of action traditionally arising at law by 

failing to demand a jury trial for the previously and separately 

tried issue of immediate right to possession. We agree.

19 See State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).

20 See Federal Nat. Mortgage Assn., supra note 7.
- 56 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

[11‐14] As previously mentioned, Neb. Const. article I, § 6, 

preserves the right to a jury trial as it existed under the common law. At common law, legal claims were tried by a jury 

and equitable claims were tried by a court. 21 Accordingly, in 

Nebraska, it is well established that litigants are typically entitled to a jury trial on legal claims, but not equitable claims. 22

The essential character of a cause of action and the remedy 

or relief it seeks as shown by the allegations of the petition 

determine whether a particular action is one at law to be tried 

to a jury or in equity to be tried to a court. 23 A suit for damages 

arising from breach of a contract presents an action at law. 24

Additionally, a claim for unjust enrichment is a quasi‐contract 

claim for restitution. 25

Statutory law is similar in effect. Under Neb. Rev. Stat. 

§ 25‐1104 (Reissue 2016), “Issues of fact arising in actions 

for the recovery of money or of specific real or personal 

property, shall be tried by a jury unless a jury trial is waived 

. . . .” In its order following the bench trial on damages, 

the district court made findings of fact. There can, therefore, be no doubt that factual issues were presented in the 

matter. Per the district court’s bench trial on damages, 132 

Ventures sought the recovery of money. The bench trial was 

focused on the amount of money to which 132 Ventures was 

entitled. Thus, 132 Ventures’ causes of action for breach of 

contract, breach of guaranty, and unjust enrichment were 

legal in nature, and the issues of fact that arose thereunder 

entitled Active Spine and the Muchowiczes to a jury trial 

unless waived.

21 Schmid, supra note 4.

22 Id.

23 Id.

24 Dick v. Koski Prof. Group, 307 Neb. 599, 950 N.W.2d 321 (2020), 

modified on denial of rehearing 308 Neb. 257, 953 N.W.2d 257 (2021).

25 Zook v. Zook, 312 Neb. 128, 978 N.W.2d 156 (2022).
- 57 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

Waiver of Right to Jury Trial

Finding that Active Spine and the Muchowiczes were entitled to a jury trial on damages, we must determine whether 

they effectively waived that right. Although a jury trial demand 

is required in county court, it is not required in district court. 26

The waiver of a party’s right to a jury trial in district court is 

statutorily governed by Neb. Rev. Stat. § 25‐1126 (Cum. Supp. 

2020), because it sets reasonable limits on a constitutional 

right. 27 Section 25‐1126 provides:

The trial by jury may be waived by the parties in 

actions arising on contract and with assent of the court in 

other actions (1) by the consent of the party appearing, 

when the other party fails to appear at the trial by himself 

or herself or by attorney, (2) by written consent, in person 

or by attorney, filed with the clerk, and (3) by oral consent in open court entered upon the record.

In Jacobson v. Shestra,

 28 we held that we will not find a 

waiver of a jury trial in district court unless a party’s conduct 

falls into one of the three categories enumerated in § 25‐1126. 

Additionally, we explained in Jacobson that cases in which 

the parties tried issues of fact to the court without objection 

or asked for a directed verdict should be construed as falling 

into the third, “oral consent,” category of waivers. 29 This rule 

applies individually to bifurcated trials. 30

There is no evidence in the record, and no party argues, 

that Active Spine or the Muchowiczes waived their right to 

a jury trial by failing to appear or by written consent. Thus, 

26 See Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

27 Id.

28 Id.

29 See id.

30 Cf. id. (merely failing to object, before trial, to defendant’s request for 

bench trial on bifurcated affirmative defense cannot be oral consent in 

open court to waive jury trial).
- 58 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

only the “oral consent” category of waivers is at issue. To that 

effect, 132 Ventures argues that at the July 20, 2021, hearing 

to set trial, all parties agreed that the issue of damages should 

be set for a bench trial, and neither Active Spine nor the 

Muchowiczes objected at the hearing. The district court’s order 

setting the bench trial date stated that “upon agreement of the 

parties . . . the case should be tried to the Court without a jury.” 

However, all parties agreed at oral argument that the hearing 

to set trial was not conducted on the record, and as such, no 

record is available for review on appeal. Further, Active Spine 

and the Muchowiczes opted not to present their own case in 

chief or move for a directed verdict at the trial on damages, 

instead continuing their objection to the trial going forward 

without a jury. Accordingly, we are unable to find any instance 

of “oral consent in open court entered upon the record” operating to waive their right to a jury trial under § 25‐1126. This 

result is consistent with the plain language of § 25‐1126 and 

our policy of strictly construing the same to preserve a constitutional right. 31

Damages

Lastly, both parties argue that the trial court erred in determining damages. Active Spine and the Muchowiczes contend 

that 132 Ventures failed in proving damages. We decline to 

consider these arguments because the amount of damages to 

be awarded is a determination solely for the fact finder and 

will necessarily be decided by the jury. 32 Additionally, in its 

cross‐appeal, 132 Ventures challenges the district court’s use 

of the amended lease in calculating damages, which was 

based on the court’s determination that 132 Ventures was not a 

party to the original lease and therefore could not contest the 

31 See id. at 623, 849 N.W.2d at 521 (“[u]nder a rule of exclusivity, unless a 

party’s conduct falls into one of § 25‐1126’s three categories, we will not 

find a waiver of a constitutional right”).

32 See McGill Restoration, supra note 2.
- 59 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY

Cite as 313 Neb. 45

validity of the amended lease. Again, because the fact finder 

will determine which lease is operable and ultimately determine if any damages are warranted, we reverse the trial court’s 

determination that 132 Ventures was precluded from contesting the validity of the amended lease and remand the cause for 

a new trial with a jury.

CONCLUSION

Under the circumstances, the district court erred in proceeding to trial without a jury on 132 Ventures’ causes of action for 

breach of contract, breach of guaranty, and unjust enrichment. 

This does not affect the part of the district court’s judgment 

addressing the forcible entry and detainer. Consequently, we 

affirm that part of the judgment. The portion of the judgment 

addressing 132 Ventures’ other causes of action is accordingly 

reversed, and the cause is remanded for a new trial to a jury 

on those causes of action.

Affirmed in part, and in part reversed 

and remanded for a new trial.

Miller-Lerman, J., not participating.